First Amendment

Journalism professor Will Nevin writes about the U.S. Supreme Court case, United States v. Elonis, that'll be heard in oral argument this week. At issue is whether a conviction for making "true threats" on-line requires that the speaker subjectively intended the threat or if a reasonable person would objectively view their speech as a threat. Anthony Elonis says he was writing rap songs and satire instead of wanting to make his estranged wife, law enforcement, coworkers and others fear for their safety.

Matthew D. Bunker, a professor and media law expert in the University of Alabama's College of Communication and Information Sciences told colleague Nevin that true-threat jurisprudence is "'not a fully developed area of the law. There are a few broad pronouncements from the Supreme Court, but I don't think the court has worked out the intricacies of the doctrine.'" Ronald Krotoszynski, a constitutional law professor at the University of Alabama School of Law, asked why Elonis should escape liability for threats made through speech when he would face liability for brandishing a gun, but Woodrow Hartzog, an associate professor and media and privacy law expert at Samford University's Cumberland School of Law, warned that a ruling against Eloni could limit more speech than is necessary.

The U.S. Supreme Court has upheld the First Amendment rights of protesters to convene at the funerals of soldiers and at abortion clinics, The New York Times' Adam Liptak notes in a Sidebar column. But the right of protest does not extend to the plaza outside the Supreme Court. The D.C. Circuit has heard arguments on whether the law banning protests on the plaza can comport with the First Amendment.

"People with power and connections can use the plaza" for commercial or professional filming or when attorneys and parties address the media on the plaza immediately after oral argument before the justices, Liptak writes. But ordinary protesters cannot.

When Twitter filed its First Amendment lawsuit this week challenging the government gag on disclosing government surveillance requests to its customers, the company did so to establish "a constitutional right to truthfully inform its customers and the broader public that it has not received particular types of surveillance requests. In other words, Twitter is seeking judicial endorsement of its right to publish a 'warrant canary,'" Brett Max Kaufman writes in Just Security. According to Kaufman, the Electronic Frontier defines a warrant canary as a "'regularly published statement that a service provider has not received legal process that it would be prohibited from saying it had received. Once a service provider does receive legal process, the speech prohibition goes into place, and the canary statement is removed,' thereby informing the public that the process has been received."

The reason why Twitter is fighting against government compulson to remain silent and to report when it has not received surveillance requests is that the government has taken the position that Twitter is bound by a settlement reached with other tech companies about reporting surveillance requests even though it did not sign onto the accord, Kaufman said.

Jeffrey Vagle, writing in Just Security, says that a recent decision from U.S. District Lucy Koh could strengthen the positions of plaintiffs seeking standing to challenge government surveillance. Courts have consistently ruled that plaintiffs don't have standing to challenge government surveillance, he notes, even though "research has long shown that even the mere awareness of government surveillance, under which an individual could reasonably expect herself to be observed, can yield very real chilling effect injuries, including self-censorship and an increased reluctance to associate with certain people or groups. Foucault would, of course, argue that this is the entire point of surveillance."

Koh ruled in a case involving a data breach at Adobe that the plaintiffs had standing to bring their claims because they need only show a "'substantial risk that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm.'" The reasoning in Koh's decision "may be a sign that future surveillance harms will soon be recognized as an 'injury in fact,'" making it easier for plaintiffs to assert standing and keep pursuing their cases in court, Vagle said.

Andy Grim, a reporter for the Times-Picayune, reports that the Fifth Circuit appeared reluctant "to weigh in on the issue of First Amendment rights of anonymous online commenters" during oral argument on the issue Thursday. A lower court judge ordered the newspaper to turn over information about a pair of anonymous commenters on its website, Grim said. The defendant thought it could show that federal prosecutors were making comments about her case. A new trial was granted to five police officers convicted in post-Hurricane Katrina shootings.

Andy Grim, a reporter for the Times-Picayune, reports that the Fifth Circuit appeared reluctant "to weigh in on the issue of First Amendment rights of anonymous online commenters" during oral argument on the issue Thursday. A lower court judge ordered the newspaper to turn over information about a pair of anonymous commenters on its website, Grim said. The defendant thought it could show that federal prosecutors were making comments about her case. A new trial was granted to five police officers convicted in post-Hurricane Katrina shootings.

The Washington Post reports that police in Ferguson, Missouri, have accelerated their efforts to suppress peaceful protests about Michael Brown's killing by a white police officer several weeks ago: "A Washington Post review of county and state arrest records, and interviews with Justice Department officials, Ferguson and St. Louis County police chiefs, dozens of protesters and several civil rights officials reveal that: Hundreds of protesters have been arrested since August for violating unwritten rules and committing minor offenses, such as failure to disperse or unlawful assembly, and for violating a noise ordinance. Many have been taken to jail without being told what charges they may face and are often released without any paperwork. For weeks, officers employed a 'five-second rule' under which any protester who stopped walking was subject to arrest — a policy ruled unconstitutional by a federal judge this week." Protesters also complain that their jail time is increasing and bail amounts for their release are increasing.

The Ninth Circuit heard oral argument yesterday on whether it violates the First Amendment for the FBI to gag tech and telecommunications firms from revealing that they have received "national security letters" for customer records, Reuters reports. Tech companies, including Google, Microsoft Corp and Facebook Inc said in court papers "the government may not 'foist a gag order upon the involuntary recipient of an NSL, let alone prohibit the recipient from even reporting periodically the aggregate number of such demands that it receives,'" Reuters further reports.

After protests started following Michael Brown's shooting in Ferguson, Mo., by a police officer, police told protestors they had to keep walking and they couldn't keep still. Now U.S. District Judge Catherine Perry has issued a preliminary injunction to stop police from enforcing a practice she found to be unconstitutional, CNN reports: "In some cases, officers told protesters they couldn't stand still for more than five seconds. In others, the protesters were told they were walking too slowly."